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UNITED STATES EX REL. TESTAMARK v. VINCENT

September 26, 1973

UNITED STATES of America ex rel. Louis TESTAMARK, Petitioner,
v.
Leon J. VINCENT, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

MEMORANDUM

TENNEY, District Judge.

 Petitioner, Louis Testamark, is presently incarcerated in Green Haven Correctional Facility, Stormville, New York, pursuant to a judgment of conviction rendered in Supreme Court, New York County. A jury found Testamark guilty of the crimes of robbery in the first degree, petit larceny, possession of a weapon as a felony and attempted assault in the second degree. The trial judge sentenced him to indeterminate terms of imprisonment of up to ten years on the robbery count, up to seven years on the possession count and up to four years on the attempted assault count. Petitioner received an unconditional discharge on the petit larceny count. Testamark now petitions the Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1970), on the grounds that he was denied his right to counsel under the Sixth Amendment to the United States Constitution and that he was denied his right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution.

 A brief summary of the facts which formed the basis of his conviction are as follows. On December 24, 1969, petitioner entered a liquor store on Ninth Avenue in New York City. At that time, the owner, an employee and approximately ten customers were present in the store. As the owner was in the process of making change for one of the customers, petitioner pulled out a gun and demanded the contents of the open cash register. While petitioner was reaching into the register to remove the money, the owner grabbed petitioner's gun hand and pushed it toward the ceiling. A shot rang out and the owner reached for his own gun (for which he possessed a license) and shot petitioner in the stomach. Petitioner, although wounded, pushed the owner to the floor and attempted to flee.

 Before leaving the store, however, petitioner turned and fired another shot at the owner. An employee then struck petitioner over the head with a bottle. Testamark crashed through the plate glass door out into the street and ran down Ninth Avenue. The owner, after returning petitioner's fire, pursued him. After a short chase, petitioner surrendered to the owner when his wounds permitted him to flee no further. The police were then called. Upon their arrival, they arrested petitioner and recovered the gun which he allegedly used in the robbery.

 Testamark was taken to Saint Vincent's Hospital, where he remained until March 16, 1970. On that date he was arraigned in Criminal Court, New York County and the Legal Aid Society was appointed to represent him. On May 14, 1970, the Grand Jury indicted petitioner for the crimes of which he now stands convicted. On May 26, 1970, petitioner was arraigned in Supreme Court, New York County, on the charges contained in the indictment.

 Between the date of his second arraignment and the date of his trial, petitioner's case appeared on the calendar of the Supreme Court no less than nineteen times. Ten different Legal Aid attorneys represented him. No one of them appeared more than two times. On no less than five occasions, the court record indicates either no appearance for petitioner or does not name his counsel.

 By June 22, 1970, when petitioner had appeared before the court for the third time, he had been in custody for six months and had been visited by his trial attorney just once for the purpose of taking a statement. On June 22, petitioner requested a copy of the indictment and that "Appellate Division" counsel be appointed (pursuant to N.Y. County Law Art. 18B McKinney's Consol. Laws, c. 11 (McKinney 1972)) to replace Legal Aid. The motion was denied without any inquiry into the reasons for the application. (PTT no. 3 at 2.) *fn1"

 Approximately one month later, on July 28, 1970, petitioner wrote to his trial counsel, asking that she come to see him. She neither replied to the letter nor visited Testamark. On October 6, 1970, approximately ten months after petitioner's arrest, he again appeared before the same judge who presided on June 22, 1970, and again requested a copy of the indictment and appointment of new counsel. Despite the desperate tone of his plea, the motion was denied without any inquiry into the substance of the application. (PTT no. 5 at 10-12.)

 At the same hearing, petitioner's case was marked ready for trial with the consent of his attorney. Subsequently, she was injured and Edward Lipton was assigned in her place. From October 27, 1970 to December 17, 1970, the case was marked "ready and passed" twelve times on the trial calendar. On December 17, petitioner was produced in court. The assistant district attorney, Mr. Kiernan, informed the presiding judge that the prosecution was ready for trial and that Mr. Lipton, too, was ready to proceed (although Mr. Lipton was not then present). This was the first time that Testamark had any knowledge that Mr. Lipton now represented him (however, it is stipulated that Mr. Lipton was assigned to the case on or about October 20, 1970). Petitioner again moved for the appointment of new counsel. Although the judge initially granted the request, he reversed himself when Mr. Kiernan persuaded him that Mr. Lipton was indeed ready for trial and that petitioner was merely seeking to delay the trial. The judge did, however, order Mr. Lipton (who was not present) to speak with petitioner (PTT no. 19 at 4-10).

 This order was disregarded and Mr. Lipton did not see petitioner until January 4, 1971, the day of the trial. After a short conference with petitioner, Mr. Lipton attempted to bargain for a plea to a reduced charge but was unsuccessful. When the case was called for trial, Mr. Lipton, at petitioner's request, moved that Legal Aid be excused and that new counsel be appointed. The motion was summarily denied without any inquiry into petitioner's claim that Legal Aid was not prepared for trial. Although Testamark refused to accept Mr. Lipton as counsel, the Court did not relieve Legal Aid of its obligation to petitioner.

 Both a suppression hearing and a trial were held. Petitioner repeatedly refused to participate in either. Mr. Lipton, who sat by petitioner's side throughout the proceedings, made no statements of any kind to the jury (although he did participate in discussions at the sidebar), did not question any witnesses, and did not present any witnesses on petitioner's behalf.

 Not surprisingly, petitioner was convicted. An appeal was taken to the Appellate Division which affirmed the conviction. People v. Testamark, 40 A.D. 2d 645, 336 N.Y.S. 2d 482 (1972). An application for leave to appeal to the New York Court of Appeals was denied. Petitioner has, therefore, exhausted his state remedies.

 RIGHT TO EFFECTIVE REPRESENTATION

 The first question facing this Court is whether petitioner was denied his right to counsel under the Sixth Amendment to the United States Constitution. It is well settled that the right to counsel means the right to effective counsel. See, e.g., McMann v. Richardson, 397 U.S. 759, 773, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).

 Petitioner's first assertion, which is uncontradicted by respondent, is that from March 16, 1970, when Legal Aid was first assigned to represent petitioner, to January 4, 1971, the start of his trial, he was visited only once by someone from Legal Aid. Respondent replies to this assertion by citing to Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), in which the Supreme Court held that there was no deprivation of the right to effective assistance of counsel where the sole consultation between defendant and his assigned counsel occurred just a few minutes before trial.

 Chambers is not, however, dispositive of the instant application. First, the Supreme Court was presented with distinguishing factual circumstances: (1) Chambers was a multiple defendant case and, therefore, counsel for the other defendants presumably could have compensated, through effective cross-examination, for at least some of Chambers' counsel's deficiencies; (2) Chambers' attorney had the opportunity to refer to the record of the first trial in preparation for the retrial; and (3) the claim of ineffective counsel rested primarily on the failure of Chambers' attorney to have several items of evidence suppressed -- evidence which the Supreme Court found either to be admissible or even if improperly admitted into evidence to be, nonetheless, harmless error. Secondly, the court merely ruled that tardy appointment of counsel would not require a per se reversal of the conviction. Chambers v. Maroney, supra, 399 U.S. at 54, 90 S. Ct. 1975. It did not hold that all habeas corpus applications which asserted a failure of assigned counsel to confer with a petitioner more than once did not have any merit.

 Furthermore, petitioner's claim does not rely solely on the grounds of an insufficient number of consultations. Petitioner asserts, and respondent concedes, that Legal Aid did nothing to prepare for trial other than his attorney's single visit to petitioner *fn2" and a visit to the scene of the crime by Mr. Lipton (who spoke to no one during this visit); that prior to trial, Legal Aid did not interview any witnesses, did not attempt to develop any line of defense, did not speak with petitioner with respect to any possible line of defense, did not speak with any hospital officials concerning petitioner's condition at the time of arrest and did not even seek a bill of particulars from the prosecution. Mr. Lipton did, however, discuss with petitioner the possibility of pleading guilty and did attempt to bargain with the prosecution for a favorable disposition, although unsuccessfully.

 Such a paucity of preparation flies in the face of established constitutional requisites.

 
"Counsel [for an indigent] must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby." Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968).

 See also Hollingshead v. Wainwright, 423 F.2d 1059, 1060 (5th Cir. 1970); Williams v. Beto, 354 F.2d 698, 705 (5th Cir. 1965). Indeed, Mr. Lipton acknowledges that this was one of the worst prepared cases he has seen and that the services rendered to petitioner bordered on the incompetent. (Statement of Facts para. 25.)

 Respondent attempts to counter by claiming that the trial record "is replete with evidence that Legal Aid was stymied with petitioner's refusal to proceed without an 'Appellate Division ' lawyer." (Respondent's Aff. in Opp. at 9.) The Court most emphatically disagrees with this conclusion. In the first instance, although the record of the suppression hearing and the trial itself is admittedly replete with petitioner's refusal to allow Mr. Lipton to serve as his counsel -- see, e.g., Tr. at 12-14, 15a, 21, 25-28, 33-34, 39, 50-51 *fn3" -- such refusal neither excuses nor justifies Legal Aid's failure to prepare in advance of trial. Secondly, the record does not indicate that petitioner, prior to trial, "stymied" Legal Aid's efforts to prepare a defense. To the contrary, the record reflects the continuing and unsuccessful efforts of petitioner to draw the trial court's attention to the utter failure of his counsel to prepare for trial. A few examples from the pre-trial proceedings follow.

 
"THE DEFENDANT: May I have a copy of the indictment? I have asked for it two or three times already.
 
"THE COURT: You do that through your counsel.
 
"MR. KAPLAN [appearing for Legal Aid on behalf of petitioner]: I will notify Mr. Harap.
 
"THE DEFENDANT: I would also like an Appellate Division lawyer assigned to this case.
 
"THE COURT: Motion denied.
 
"THE DEFENDANT: Why can't I have an Appellate Division lawyer assigned to the case?
 
"THE COURT: Because you have a lawyer assigned who is very capable, Mr. Harap. I happen to know Mr. Harap and he is a very capable young man and much more capable than some of the Appellate Division lawyers that you people are clamoring for." (PTT no. 3 at 1-2.)

 Contrary to the statement made by Mr. Kaplan, Mr. Harap had not been, nor ever was, assigned to represent petitioner.

 "THE DEFENDANT: I furthermore request that I have a copy be issued of the indictment, the valid indictment, because I may have it.

 "THE COURT: [Counsel], will you see he gets a copy of the indictment?

 "[COUNSEL]: I will make one.

 "THE DEFENDANT: I want a copy of it today.

 "[COUNSEL]: You can't have a copy of it today.

 He is going to relieve us and going to represent himself. Otherwise, his attorney will have none, because I have only one copy.

 "THE DEFENDANT: My legal defense is walking away from me, denying a copy of the indictment.

 "THE COURT: She is not walking away.

 "THE DEFENDANT: What is she doing? She says I can't have a charge that is being ...


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